A contextual approach to the reasonable expectation of privacy: The Supreme Court of Canada's decision in R. v. Jarvis

(This post is admittedly on the long side - if you have read the case and all you want are my thoughts on the difference between majority and minority opinions, feel free to skip to "Concluding thoughts" at the end.)

On February 14, 2019 the Supreme Court of Canada released its long-awaited decision in R. v. Jarvis, a case in which a high school teacher was prosecuted for voyeurism after he used a pen camera to make multiple recordings of female students’ cleavage while he talked to them in hallways or labs at school. Jarvis was acquitted at trial on the basis that the judge was not persuaded beyond a reasonable doubt that the recordings were for a sexual purpose, which was an element of the crime. The Ontario Court of Appeal found that the recordings were for a sexual purpose, but they upheld the acquittal on the basis that the students had no reasonable expectation of privacy at school. (My post on the ONCA decision is here).

The only issue before the Supreme Court of Canada (SCC) was “whether the Court of Appeal erred in finding that the students recorded by Mr. Jarvis were not in circumstances that give rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code.” (at para 4). The SCC ruled unanimously that the students had a reasonable expectation of privacy and that a conviction should be entered in the case. However, the Court split on how they reached that conclusion. Six judges opted for a contextual approach to the reasonable expectation of privacy that set out a non-exhaustive list of nine considerations to take into account in determining whether a person has been observed or recorded in circumstances giving rise to an expectation of privacy. In reaching this interpretation, these judges relied in part on ‘reasonable expectation of privacy’ jurisprudence developed by the Court under s. 8 of the Charter.The three minority judges rejected the use of privacy jurisprudence developed in the criminal context, where the interests of the state are pitted against those of the individual. They also disagreed with the majority’s list of factors to consider in assessing a reasonable expectation of privacy. The minority would have kept only those four of the nine factors that could be linked to elements of the offence in s. 162(1).

The importance of this decision lies in the contextual approach taken by the majority to the reasonable expectation of privacy. This approach moves us away from the troubling dichotomy between public and private space which seems to inform the decision of the majority of the Court of Appeal. While the location of the person who is being subject to observation or recording is one of the factors to take into account, it is only one of them. Similarly, awareness of or consent to potential observation or recording is only a consideration and is not on its own determinative. The contextual approach also permits consideration of the relationship between the parties.

In this case, Jarvis had been charged with the crime of voyeurism under s. 162(1) of the Criminal Code.It is useful to reproduce the relevant parts of this provision:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

[. . . ]

(c) the observation or recording is done for a sexual purpose.

For there to be a conviction, Jarvis’ recordings would have to have been of students “in circumstances that give rise to a reasonable expectation of privacy.” The recordings were made when Jarvis engaged individual students or small groups of students in conversation in the school’s hallways or common areas.

The Majority’s approach to Interpretation

The majority’s interpretation of the phrase “circumstances that giver rise to a reasonable expectation of privacy” is important, particularly since the majority of the ONCA had focused predominantly on location in determining whether a reasonable expectation of privacy arose on the facts. The majority of the SCC had some important things to say on the issue of privacy in public space. While acknowledging that expectations of privacy “will generally be at their highest when a person is in a traditionally ‘private’ place from which she has chosen to exclude all others”, (at para 37), Chief Justice Wagner nonetheless affirmed that a person does not lose all expectation of privacy because she is in public. He stated:“a person may be in circumstances where she can expect to be the subject of certain types of observation or recording but not to be the subject of other types.” (at para 38) He continued: “being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observations or recording”. (at para 41)

The Chief Justice noted that the wording of s. 162(1) also supported the view that a reasonable expectation of privacy was not tied to location. In the first place, that provision speaks of “circumstances” giving rise to a reasonable expectation of privacy. It identifies three possible situations, the first of which is tied to location (where a person is “in a place in which a person can reasonably be expected to be nude. . . or to be engaged in explicit sexual activity: s. 162(1)(a)). (at para 44) But paragraph 162(1)(c) merely refers to situations where “the observation or recording is done for sexual purposes.This latter provision contains no element of location.

The majority ruled that the jurisprudence developed under s. 8 of the Charter, which provides a right to be free from unreasonable search or seizure, could be used in interpreting the concept of “reasonable expectation of privacy”. This is a point on which the minority justices differed sharply. Section 8 of the Charter essentially provides an accused with what amounts to privacy protection from state intrusion. The concept of a “reasonable expectation of privacy” is a key element of a s. 8 analysis. However, as the majority notes, it is also a term used in other contexts – both civil and criminal. Interestingly, those civil contexts in which the phrase is used in Canadian legislation are predominantly found in relatively new statutes that provide tort recourse for the non-consensual distribution of intimate images. The phrase appears in legislation of this kind in Nova Scotia, Newfoundland, Alberta, Saskatchewan and Manitoba.

The majority noted that the Court’s s. 8 jurisprudence requires a contextual analysis of the reasonable expectation of privacy.Further, the case law teaches us that ‘privacy is not an ‘all-or-nothing’ concept and that “simply because a person is in circumstances where she does not expect complete privacy does not mean that she waives all reasonable expectations of privacy.” (at para 61) Privacy is differently affected by recordings than by passing observations. Further, the impact of new and emerging technologies needs to be carefully considered. It is possible that “technology may allow a person to see or hear more acutely, thereby transforming what is “reasonably expected and intended to be a private setting” into a setting that is not.” (at para 63). The majority also noted that “’reasonable expectation of privacy’ is a normative rather than a descriptive standard.” (at para 68). This means that a person’s expectation of privacy should not be determined simply on the basis of whether there is a risk that they might be observed or recorded.If this were the case, advances in technology would shrink reasonable expectations of privacy to nothingness. As a result, the majority framed the core question as “whether that person was in circumstances in which she would reasonably have expected not to be the subject of the observation or recording at issue.” (at para 70)

Applying the contextual approach

For the majority, the determination of whether a person was in “circumstances that give rise to a reasonable expectation of privacy” should be guided by a non-exhaustive list of contextual considerations. These considerations should include:

1.The location the person was in when she was observed or recorded

2.The nature of the impugned conduct, that is whether it consisted of observation or recording

3.Awareness of or consent to potential observation or recording.

4.The manner in which the observation or recording was done

5.The subject matter or content of the observation or recording

6.Any rules, regulations or policies that governed the observation or recording in question.

7.The relationship between the person who was observed or recorded and the person who did the observing or recording.

8.The purpose for which the observation or recording was done

9.The personal attributes of the person who was observed or recorded.

Applying these factors to the case before them, the majority noted that the videos were taken at school. The majority of the Court of Appeal had considered schools to be public places. However, the majority of the SCC found that schools are not entirely ‘public’ in nature. Access is restricted, and schools are “subject to formal rules and informal norms of behaviour, including with respect to visual recording, that may not exist in other quasi-public locations”. (at para 73). They noted that the young women were not merely observed, they were recorded – and they were unaware that recording was taking place. Although the ONCA had taken into account the fact that students were aware of continuous recording by security cameras in schools, the majority of the SCC ruled that “not all forms of recording are equally intrusive” and “there are profound differences between the effect on privacy resulting from the school’s security cameras and that resulting from Mr. Jarvis’ recordings” (at para 75). The majority found Jarvis’s recordings were “far more intrusive than casual observation, security camera surveillance or other types of observation or recording that would reasonably be expected by people in most public places, and in particular, by students in a school environment.”(at para 76).

In considering the content of the recordings, the majority noted that while the recordings were of students engaging in normal school activities, they focused close-up on their faces and breasts. The videos targeted specific students rather than capturing general scenes of school activity. The majority stated:“the videos do not show students merging into the “situational landscape”; rather, they single out these students, make them personally identifiable, and allow them to be subjected to intensive scrutiny.” (at para 80).

On the issue of rules and policies, the majority noted that there was a formal school board policy that prohibited the making of recordings of this kind. While the existence of such rules or policies is not determinative, and their weight might vary depending on the circumstances, in this case, the policy gave clear support to a finding of a reasonable expectation of privacy on the part of the students. Jarvis’ behavior was outside of the clearly established norms for teachers at school.

The seventh factor is important in this case. It relates to the relationship between the perpetrator and the person being observed or recorded. The majority found that a relationship of trust existed between teachers and students. The Chief Justice wrote: “It is inherent in this relationship that students can reasonably expect teachers not to abuse their position of authority over them, and the access they have to them, by making recordings of them for personal, unauthorized purposes” (at para 84). Of all of the factors in the majority’s list, this is the one that makes it most clear that a reasonable expectation of privacy does not rely simply on factors related to location, awareness, or the logistics of the observation or recording. Perhaps because of this, it is one of the factors the minority justices rejected.

The majority also considered the purpose of the recording. Since conviction for voyeurism under s. 162(1)(c) requires that the observation or recording be for sexual purposes, this seems a bit redundant. However, the consideration is part of an framework for determining a reasonable expectation of privacy more generally – and presumably in contexts other than just s. 162(1) of the Criminal Code. Thus, for example, the fact that the school had video cameras in public spaces did not infringe on the students’ reasonable expectations of privacy, but Jarvis’ recordings did – a key reason (though not the only one) for this was linked to the purpose of the recordings. The majority of the Court of Appeal, by contrast, had fixed on location as crucial to the reasonable expectation of privacy; citing the public nature of schools and the already existing surveillance cameras, they found the students had no reasonable expectation of privacy

The final factor considered by the majority was the “personal attributes” of the affected persons. In this case, it meant taking into account that the people recorded were high school students. Justice Wagner noted that there is evidence of a “societal consensus” that children have “greater privacy rights than similarly situated adults.” (at para 86).

After applying these criteria to the facts, the majority easily concluded that the young women recorded by Jarvis had a reasonable expectation of privacy. Justice Wagner wrote:“A student attending class, walking down a school hallway or speaking to her teacher certainly expects that she will not be singled out by the teacher and made the subject of a secretive, minutes-long recording or series of recordings focusing on her body.” (at para 90). Interestingly, he also indicated that he might have ruled the same way if the recordings had been made by a stranger on a public street.

The minority opinion

Justice Rowe wrote for the three judges in the minority. Although they too found that a conviction should be entered in this case, they had two main points of disagreement with the majority justices. The first was that, in their view, s. 8 case law should not be used in interpreting what a “reasonable expectation of privacy” is for the purposes of a criminal offence. They noted that s. 8 case law evolved to address the reasonable expectations of privacy that individuals have vis à vis the state. Section 162(1) involved the Crown having to prove that one individual encroached on the reasonable expectation of privacy of another; according to Justice Rowe, this was something very different from redressing “[t]he power imbalance of the police as agents of the state vis-à-vis a citizen that is at the heart of the preoccupations under s. 8 of the Charter”. (at para 102)

Justice Rowe also considered that s. 8 had been interpreted to protect personal, territorial and information privacy. By contrast, in his view, s. 162(1) of the Criminal Code “can relate only to the protection of one’s physical image, a subcategory of personal privacy, itself a subcategory of that which is protected under s. 8”. (at para 102).

The minority justices also take issue with the majority’s list of contextual factors. Instead, they find that only four of the nine factors are actually required by the wording of s. 162(1) taken as a whole. These are: location, the subject matter of the observation or recording; the purpose for which it was made; and the complainant’s awareness of the observation or recording. For the minority justices, the five other factors identified by the majority are relevant only to sentencing.Thus, for the minority, the existence of a relationship of trust is not a factor in assessing whether a person is guilty of voyeurism.

Justice Rowe notes that the voyeurism offences in the Criminal Code were the first “to include a complainant’s reasonable expectation of privacy as an element of the offence.” (at para 118) Since voyeurism is a sexual offence, he argued that the concept of a reasonable expectation of privacy had to be interpreted with regard to “personal autonomy and sexual integrity”. In his view, the privacy interest in s. 162(1):

is meant to protect a privacy interest in one’s image against observations or recordings that are, first, surreptitious and, second, objectively sexual in content or purpose. This privacy interest itself, where it is substantially and not trivially engaged (e.g. by merely uncouth or ill-mannered behavior), is founded on the twin interests of the protection of sexual integrity and the autonomy to control one’s personal visual information. (at para 128)

In the context of the voyeurism offence, the minority justices were of the view that “Infringing a person’s reasonable expectation of privacy in the context of the voyeurism offence can be conceptualized as crossing a threshold where the law prioritizes the observed person’s interest in protecting their autonomy and sexual integrity over the accused’s liberty of action.” (at para 132)

Such an approach to privacy does not depend solely on location. While location is relevant, it is not determinative. For the minority justices, a privacy infringement occurs “when that which is unknown/unobserved becomes known/observed without the person having put this information forward.” (at para 136) Although a person may be undressed in some public places such as a change room, they might reasonably expect to be observed, yet they would “maintain an essential privacy interest that can be infringed by surreptitious observation or recording, with or without the use of technology, which allows more invasive access to the subject’s image than would otherwise be possible.” (at para 137)

Ultimately, the minority justices found that the students had a reasonable expectation “regarding how their bodies would be observed in the classrooms and hallways of their school” (at para 146). They found that Jarvis’ recordings “went beyond the access that the students allowed in this setting, thus infringing their autonomy”. They were also of a sexual nature, leading to the conclusion that the students’ sexual integrity was infringed.

Concluding Thoughts

The majority’s decision will likely be welcomed by many in the privacy community who had become concerned by the fact that many lower courts, in different contexts, had suggested that there can be no reasonable expectation of privacy in public space. In a society in which public space is increasingly penetrated by technology that permits surveillance and recording (the majority, for example, mentioned drones, but Jarvis’ pen camera is also an example), a contextual approach to privacy is far more useful than any distinction based on concepts of private and public space. The majority also includes the concept of relationships of trust or authority in its analysis. In Jarvis, it is hard to ignore the fact that the teacher was in a position of both trust and authority over the students. Youths should be able to trust that the adults who have authority over them will not surreptitiously record images of them for sexual purposes regardless of where they are located. The relationship is surely a factor in the reasonableness of any expectation of privacy. The majority’s contextual approach feels right in these circumstances.

At the same time, the minority is correct in noting that s. 8 jurisprudence has evolved to answer the question of whether and when individuals have a reasonable expectation of privacy vis à vis the state. As Justice Rowe observes in Jarvis, s. 162(1) is an offence that defines the circumstances in which a person’s liberty to act crosses the line and becomes criminal. His approach, which links the expectation of privacy to considerations present in the wording of the offence (including location, purpose of recording, the subject matter of the observation or recording, and the complainant’s awareness of the filing), is meant to keep the offence more narrowly focused to preserve the balance between one person’s liberty and the other person’s autonomy and sexual integrity. As noted earlier, the language “reasonable expectation of privacy” also appears in the laws of those provinces that have made it a tort to disseminate intimate images without consent. For the minority justices, the issue is whether the offender has made public something that the victim had not wished to have public – something that undermines her autonomy and sexual integrity.

The problem with the minority approach, however, may lie in what made this case – which must have seemed like a no-brainer to so many – have to go all the way to the Supreme Court of Canada for a conviction to be entered. The trial judge in this case obviously struggled with his own perceptions that the young women in question were ‘putting it out there’.He wrote: “[i]t may be that a female student’s mode of attire may attract a debate about appropriate reactions of those who observe such a person leading up to whether there is unwarranted and disrespectful ogling” (Trial decision, at para 46). Perhaps the Court of Appeal’s focus on the public nature of the school and its hallways is also influenced that this idea that women’s bodies in public spaces are there for consumption. Without the majority’s contextual approach – one that directs us to consider a range of factors including the youth of victims and relationships of trust – the decisions from the courts below are perhaps proof enough that a more pared-down focus on “autonomy and sexual integrity” may just not cut it.